Archive for December, 2015

Why We Fight: Aretha Franklin at Kennedy Center Honors Tribute to Carole King

December 30, 2015 Comments off

If this isn’t enough to make you go home and practice, I don’t know what is.

Great to see Carole King (an Ode/A&M artist) honored.  Her Tapestry album was produced by Lou Adler (an insurance salesman who wanted to write songs).


Five–Make that Six–Gains We Made in 2015: The Good News is the Bad News is Wrong

December 29, 2015 2 comments

Despite the singular lack of successful legislation in the U.S. Congress (or much of anywhere else for that matter), the news was not all bad this year.  Not by a long shot.  The good news has a common theme for the most part: Artists, a taste making radio programmer and in one case a publisher breaking away from the pack and standing up for their rights and their human dignity.  For the most part, artists said there’s something bigger than just my rights or my income at stake and we will be silenced no longer.  These were superstars and middle class artists alike, sometimes singly and sometimes in the movement (#irespectmusic), but always with a unique voice.

MIC Coaltion 8-15

Because the legislative route is blocked off by the likes of Google, Pandora and the MIC Coalition, and because the Federal Trade Commission (that shining bureaucracy on a hill and a beacon of impartiality in a world gone mad) has developed a sudden interest in all things Spotify, options were limited.  A lot of what we were able to accomplish this year happened in the courts or the court of public opinion.

Here’s a brief recap of a few of the compelling victories or events that I think contributed to the cause.

1. Artists Challenge the New Boss: Zoë Keating Takes on the Google Spin Machine:  Once again, Zoë Keating provided a voice for artists rights and led by personal example.  In her compelling viral blog post, “What Should I Do About YouTube,” Zoë described a recent encounter with the demands of Google’s YouTube the definitive “new boss” monopoly video service:

I am independent because I didn’t want a bunch of men in suits deciding how I should release my music. For 10 years I have managed to bushwhack a circuitous path around them but now I’ve got to find a away around the men in hoodies and crocs (I’m sorry, that was low, but that story was so funny).

Google’s treatment of Zoë is surely not limited to Zoë–it’s probably exactly what Google is doing to tens of thousands of artists.  We all owe her thanks for setting an example.

2.  Radio Isn’t Monolithic: Music Director Karoline Kramer-Gould Supports Radio Royalties and #irespectmusic:  The National Association of Broadcasters and its member stations have done a pretty good job of keeping radio station employees in line on paying artist royalties for broadcasting music.  If radio employees weren’t afraid of getting blacklisted before the MIC Coalition was formed, you have to believe they’re even more scared after.

Thankfully, Music Director Karoline Kramer-Gould joined with Blake Morgan to write an open letter to Representative Bob Goodlatte, Chair of the House Judiciary Committee, supporting the Fair Play Fair Pay Act authored by Rep. Jerry Nadler and Rep. Marsha Blackburn that would establish an artist royalty for terrestrial broadcast radio among other important things.  Karoline also did an inspiring interview with me for the Huffington Post.

3. Protecting Pre-72 Artists:  Flo & Eddie vs. Sirius XM and Pandora:  Flo & Eddie (aka Mark Volman and Howard Kaylan pka The Turtles) and their courageous legal team of Henry Gradstein and Harvey Geller brought a class action that was so successful, the major labels finally decided that they needed to get into the act, too.  The principle at issue was closing the “Pandora loophole” that Pandora and SiriusXM both used to screw artists who recorded prior to 1972 out of digital performance royalties.  Naturally, Pandora and Sirius have both settled with the major labels leaving the indies and individual artists to fend for themselves.  Which is OK because that’s how we got here.

4A. Ending the Whackamole Absurdity: BMG v. Cox:  BMG Rights Management and Round Hill Music sued Cox Communications for copyright infringement.  Despite what must have been an excruciating embarrassment for Cox as a never ending number of emails established its culpability, Cox thought it would get away with it by asserting a right to the safe harbor protection of the DMCA.  Judge Liam O’Grady ruled that as a matter of law, bullshit is actually bullshit…no, sorry, he ruled that Cox had failed to satisfy the knowledge predicate and “clean hands” requirement of the safe harbor defense as well as a legally cognizable repeat infringer policy, so no safe harbor for Cox.  What makes the BMG case even more savory is that the judge refused to permit Google Shill Listers EFF and Public Knowledge from filing amicus briefs in the case.  This further established the maxim of jurisprudence that bullshit is bullshit…sorry, as Judge O’Grady put it:

“I read the brief. It adds absolutely nothing helpful at all. It is a combination of describing the horrors that one endures from losing the internet for any length of time,” O’Grady reportedly told the hearing (quote via TechDirt), as he denied the motion to file.

“Frankly, it sounded like my son complaining when I took his electronics away when he watched YouTube videos instead of doing homework. And it’s completely hysterical.”

The elephant in the room of course is Google, which given the mind-numbing number of take down notices Google receives for search and YouTube (which will likely top 1 billion notices this year alone), it seems inconceivable that Google is not far worse than Cox.  Not to mention that the emails that were disclosed in the Viacom v. YouTube case were generally of the same ilk as the Cox emails.  We all know that notice and shakedown is the cornerstone of YouTube’s business.  Which was probably the reason why YouTubers developed a severe case of exploding laptops and vanishing emails suggesting the presence of some super-mold that should have required an inspection of the Googolplex by Cal-OSHA.  Maybe Viacom should have hung in there after all.

4B.  Ending the Whackamole: Kim Dotcom Ruled Extraditable back to Judge O’Grady’s Court:  When Kim Dotcom was arrested a few years ago in New Zealand, I was asked in a television interview whether I was surprised.  I said no, I wasn’t surprised.  This, of course, did not fit the narrative, so the reporter asked me why, to which I replied that when you get down on your knees and beg to be arrested, don’t be surprised if you are.

As luck would have it, the criminal case against Kim Dotcom was assigned (randomly) to U.S. District Judge Liam O’Grady (who later would be assigned the BMG v. Cox lawsuit).

Not to be cynical–Lord knows–but when you start adding up all the hourly billing that the Megavideo defendants are racking up over the last four years, you have to wonder where that money is coming from.  Ah yes, from China, of course.  Nothing to see here.

Not that anyone else might be interested in slowing this case waaaayyyy doooowwwwn.  Oh look, Megavideo had ad publisher deals with two Sequoia companies, not to mention Lessig buddies and Creative Commons backers at PartyGaming.  What a coincidence.  Somebody might look into how Adsense was distributing inventory to Megaclick.

adsense mega indictment

5.  Artists Take on the New Boss:  Taylor Swift:  Taylor Swift demonstrated how artists can make a difference in standing up to the New Boss when she decided to keep her record off of the Spotify service.  Then she brought Apple Music around to the right decision on paying royalties for their trial period with just one tweet.

6.  David Lowery’s Class Action Against New Boss Spotify:  In breaking news, Ed Christman is reporting in Billboard that David Lowery is spearheading a class action against Spotify for failing to properly license and pay songwriter royalties:

The lawsuit comes amidst ongoing settlement negotiations between Spotify and the National Music Publishers Assn. over the alleged use of allowing users to play music that hasn’t been properly licensed, and also without making mechanical royalty payments to music publishers and songwriters. According to sources, Spotify has created a $17 million to $25 million reserve fund to pay royalties for pending and unmatched song use.

MTP readers will recall that David complained to the New York Attorney General of Spotify’s failure to license properly , but I’ve not read of any answer from the AG.  Ah, well.  Must have been busy or something, holidays and all.  You don’t suppose the AG’s response got delayed by politics or anything, do ya?

Revenge of the Trip: Lessig gets it wrong again

December 27, 2015 Comments off

[Editor Charlie says: As of Christmas Day (7 days in release) “Star Wars: The Force Awakens” has grossed $890 million in worldwide box office. “How better to revive a 30-year-old series than by enlisting armies of kids to make the content interesting again?”  Well, that’s one better way.]

This is a repost from July 15, 2007

In his continuing quest to undermine the interests of copyright owners, Professor Lessig is at it again with his op-ed: Lucasfilm’s Phantom Menace in which he takes on Lucasfilm and George Lucas for the rules they established for allowing users to “remix” some Star Wars footage with other works. Lucasfilm takes the not unreasonable position that in consideration for letting people have access to Star Wars, Lucas owns the results. Lester Lawrence Lessig III doesn’t like this. Lucas should give up copyright ownership to those creating derivatives from some of the most valuable motion pictures of the 20th Century–or 21st for that matter.

And wait for it…according to LLL III, Lucas should pay these users for anything they create that Lucas wants to use.

Trip Lessig starts picking through the end user license from Lucasfilms and goes off on an anti-lawyer jag just like someone who’s never worked with an artist would. According to the Tripster, it’s the HOLLYWOOD LAWYERS who have fought innovation and lead little directors like George Lucas around on a leash.

Schmuck—it don’t work that way. Does Lessig think no one asked Lucas what he thought about who could own his property? Does Lessig also think that if there was something really cool and usable that got created as a result of permitting users to get their hands on Star Wars that the players involved would rely on a freaking click through end user license agreement as their grant of rights? Maybe these things happen in the world of the confused Creative Commons–which must be like being at the executive session of the board of directors of a lemonade stand–but in the bigs it is highly unlikely.

In the world outside of Stanford, things like this typically do not happen. Someone would find the user, make a deal, and pay them off. Or they wouldn’t use it.

I love this line from the Tripster: “How better to revive a 30-year-old series than by enlisting armies of kids to make the content interesting again?”

Ah yes. How better to “revive” the franchise than to allow an “army of kids” to get into the act. Lessig must think that Star Wars is in dire need of resuscitation. That 2005 opening weekend of Revenge of the Sith conclusively demonstrates that the franchise is in deep wookie chips. That would be the $108 million weekend that was then the second biggest opening EVER in the US and the biggest opening EVER outside the US. Another little datapoint for the Tripster: Revenge passed $300 million in global box office faster than any movie in history.

(Lessig also describes these “armies of kids” as free labor, and uses the highly offensive term “sharecroppers” to describe our little suburban friends Corky and Muffy playing with Star Wars “remixes” on their cozy side of the digital divide safe in their Stanford dorm room. Considering the source, I’m willing to believe he just doesn’t know how insulting this is. But then he probably claps on the 1 and 3, too.)

Here’s a newsflash for the Stanford madrassah: It’s not like Lucas needs help with selling the Star Wars franchise. $2.6 BILLION in box office alone. Rumor has it that a chunk of Star Wars net profits goes to support the USC film school (not quite as rich as the Google/Stanford relationship, but we Hollywood types have to stumble through life somehow.)

So Lucas has been supporting “remixing” for quite sometime, albeit in the controlled environment of the excellent film school at USC in sharp defiance of L3III obsession with letting all amateurs have a crack at other peoples property (so well described in Andrew Keen’s The Cult of the Amateur, an excellent book.) Of course film schools honor copyright and create new generations of professional creators, but unbridled “remixing” by amateurs destroys copyright, and de-incentivises new generations of professional creators. One gives us greatness the other gives us…YouTube. Which shouldn’t be surprising given that Google is the benefactor of Professor Lessig’s business unit at the Stanford Law School.  [Editor Charlie says: Remember this was written in 2007–YouTube recently announced it was spending $150 million in the US and millions more in the UK to develop premium channels for YouTube.  Only a handful of the “YouTube stars” are participating–which probably says more about Google’s ulterior motives in subsidizing the YouTube data collection honeypot than it does the work of the YouTube artists.]

Once again a major media organ gives Lessig a megaphone for what is simply gibberish. I really wish they’d check their facts before they publish this kind of thing. I know it’s not as interesting as watching Farting in Public on YouTube, but I thought it was called journalism.

So yes Lucas wants to own anything created with his work. Yes it’s supposed to be fun for fans. And yes, life would go on if no one ever “remixed” a thing.

Like any good wannabe demagoogle, Professor Lessig likes to speak for “armies of kids” to create the impression he has a mob of “sharecroppers” in the wings.

What a joke.

YouTube Censored @SharylAttkisson: Health Care “Cadillac Tax” Postponed

December 26, 2015 Comments off

If you’re one of the people left with a job in the music business where your employer pays for some of your health insurance costs under a private health insurance plan, the federal government is coming after you–but not for now.  The so-called “cadillac tax” plan to tax those health care payments as income has been postponed to 2020.

Here’s the skinny in a report by former CBS investigative reporter Sharyl Attkisson in an episode of her weekly news show, “Full Measure.”

Full Measure “is available in 43 million households in 79 markets on 162 Sinclair stations, including ABC, CBS, NBC, FOX, CW, MyTV, Univision and Telemundo affiliates.”

It’s also worth noting that YouTube (owned by Obama buddy Google) pulled down Ms. Attkisson’s Full Measure YouTube channel for “…violating our Community Guidelines”, then mysteriously put it back up without explanation.

full measure youtube

And you know that YouTube is right on top of those Community Guideline’s right?  Because they always catch things like KKK recruiting videos available to kids on YouTube.

Ms. Attkission’s best selling book “Stonewalled: My Fight For the Truth Against the Forces of Obstruction, Intimidation and Harassment in Obama’s Washington” is a scathing and nonpartisan critique of the Obama Administration’s Freedom of Information Act policies and makes a credible accusation that a government agency tapped her computers and phones.

And maybe took down her YouTube channel.



Troops Celebrate Christmas at Bagram Airfield

December 25, 2015 Comments off

The Grand Deflection: Spotify “Database” Closes the Door After the Fox is in The Chickencoop

December 24, 2015 Comments off

More on this to come, but now Spotify has been called out as a potential infringer by artists and songwriters, now–now–suddenly it’s Spotify making this announcement:

Today we are excited to announce that Spotify will invest in the resources and technical expertise to build a comprehensive publishing administration system to solve this problem.

Right…that’s called a licensing department, isn’t it?

Oh, snap!

Here’s a really simple fix–don’t use the songs if you don’t have the rights.  As Billboard reports:

Since [Spotify] initially choose to rely on outside vendors like Harry Fox’s Slingshot operation, industry sources tell Billboard that Spotify currently owes publishers and songwriters about $25 million for music played on its U.S. service. But a source close to Spotify disputes that amount and says its closer to $17 million.

So let’s get this straight–Spotify hired the Harry Fox Agency to take care of it’s licensing, but when HFA couldn’t identify rights holders–which you have to guess must have happened on a fairly grand scale–it was Spotify, not HFA, that decided to go forward and use the songs or recordings without rights.  Spotify now says that it plans to invest in an in house licensing system which apparently does not include HFA.

If HFA was doing such a poor job, then why is it that Spotify only got religion after Tony Brummel raked them over the coals.  That is–AFTER SPOTIFY GOT CAUGHT!  And now–now–they want to actually “invest” in a royalty department?  Something iTunes did on Day One?  Why would they say “invest”?  That’s kind of an odd choice of words.

Staffing a royalty department is not an investment, it’s a cost of doing business–unless of course they mean they will be one of the investors.  Alongside others who don’t bother with licenses like, oh, say YouTube or Google.  And then all the foxes will be in the chickencoop.

This is get grand deflection to take your attention away from the real problem.  Spotify smells like that place at high tide.  If one were going to make a case for intentional infringement, there’s going to be some interesting email traffic (see BMG v. Cox) that probably will not bode well.

Let the spoliation begin.

A great way to begin the season of hope.

Merry Christmas, y’all.

Rate Court is Over: Pandora Caves, Signs Licenses with ASCAP and BMI, Drops Appeal

December 22, 2015 Comments off

According to StreetInsider, MIC Coalition member Pandora has returned to Planet Earth and closed licenses with ASCAP and BMI, ending years of rate court litigation by the highly litigious Pandora under the controversial Department of Justice consent decrees.

Pandora (NYSE: P) and ASCAP and BMI, the world’s leading Performance Rights Organizations (PROs), today announced the signing of two separate multi-year licensing agreements for their combined catalogs of more than 20 million musical works. These deals create business benefits for Pandora, while modernizing compensation in the U.S. for ASCAP and BMI songwriters and publishers. In connection with the signing of the BMI agreement, Pandora has agreed to withdraw its appeal of the May 2015 order in the recent BMI rate case.

ASCAP’s and BMI’s leaders respectively emphasized the importance of preserving the value of music and the archaic and costly government rate court process that both PROs are subject to.

ASCAP’s CEO Beth Matthews nailed the value proposition:

“This agreement is good news for music fans and music creators, who are the heart and soul of ASCAP, and a sign of progress in our ongoing push for improved streaming payments for songwriters, composers and music publishers that reflect the immense value of our members’ creative contributions.”

BMI’s CEO Mike O’Neill captured the weaponized consent decrees that Pandora and other MIC Coalition members use to lay siege to songwriter’s pocketbooks:

“Not only is our new agreement comparable to the other direct deals in the marketplace, but it also allows us to amicably conclude our lengthy rate court litigation and focus on what drives each of our businesses – the music.”

Good news for Pandora stockholders, too–maybe Pandora’s “Selling, General and Administrative” Income Statement line will start going down instead of tripling and net profits will start going up.  (Pandora’s rate court costs go into the “Professional Services” category in the SG&A.)  Remember–Pandora’s 2014 gross profit was up 300% year over year, administrative costs were up by 250%–no wonder Pandora can’t make a profit.)

Pandora YOY Income Statement

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